2242-01-G Carpenters District Council of Ontario, Applicant v. J.P. Rowland Construction Ltd., Responding Party.

BEFORE: John Morgan Lewis, Vice-Chair.

DECISION OF THE BOARD; November 22, 2001

1. This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, (the “Act”). The referral was made on November 9, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on November 9, 2001 by the applicant having delivered a copy of the necessary documents required by Rule 155 of the Board’s Rules of Procedure to the responding party by giving them to UPS on November 8, 2001 who assured the applicant that they would be delivered on Friday, November 9, 2001 by no later than 5:00 p.m. The Registrar faxed a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the fax number provided for the responding party in the application, (705) 743-0222 on November 13, 2001 at 1:26 p.m.

2. As of the date of this decision, the responding party has not filed a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87). The Board’s Rules of Procedure explicitly stipulate the consequences of failing to comply with the filing requirements contained in the Rules.

3. Section 133 of the Act provides, in part:

(7) The Board is not required to hold a hearing if the responding party does not file any material.

(8) If the Board does not hold a hearing in the circumstances described in subsection (7), the Board may determine the matter with reference only to the material filed by the party referring the grievance.

(9) If the Board accepts the referral, the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 48(10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

4. In addition, the Chair of the Board has the authority to make rules to give effect to the various statutory powers conferred upon the Board. Section 110(17) of the Act provides:

The chair may make rules governing the Board’s practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.

5. Furthermore, the Board has very wide powers to require a party to provide particulars, documents, and any other information the Board deems necessary. (See sections 111(2)(a) and (b) of the Act.)

6. The Board’s Rules in respect of section 133 proceedings place a substantial burden on the applicant. As well as filing certain material with the Board, the applicant must provide to the responding party:

1. A copy of the application

2. A copy of the Notice of grievance referral.

3. A blank copy of the Request for Hearing and Notice of Intent to Defend (Form A-87, i.e. the form the responding party requires to file its response.

4. A blank response form for the responding party’s use.

5. A copy of the Board’s Rules with respect to section 133 referrals (i.e. Part VIII of the Rules, being Rules 143-163) and Information Bulletin No. 20 which provides the responding party with further information about the process involved in a section 133 application (including the consequences of default).

7. The only thing a responding party must do to avoid default proceedings is to complete the Form A-87 supplied by the applicant and deliver it to the Board and the applicant within five days of the date of the Board’s Confirmation of Filing (Form B-67). Form A-87 requires little more than the responding party’s name and address and an assertion that the responding party wishes to defend against the grievance referral. The substance of that defence is contained in the response which is not due until 9:30 a.m. on the day set for hearing.

8. The Board’s Rules require quick responses from responding parties in many sorts of applications. In an application for certification, for example, a responding employer (who is often unfamiliar with proceedings under the Act) must respond within two days after the application was served on it. In a section 133 proceeding, the responding party has some relationship with the applicant and therefore should have some understanding of the contractual and statutory context in which a grievance referral arises. In any event, the Form B-67 faxed to the responding party contains the following warning in bold print:

The failure to file a timely Request in the way required by the Board’s Rules of Procedure may result in the referral being decided without a hearing and without further notice to the defaulting party.

9. The Board’s Rules deal specifically with the consequences of failing to file the Form A-87. Rules 160 to 162, which are part of the Rules package delivered to the responding party by the applicant, provide as follows:

160. If a responding party does not deliver and file a “Request for Hearing and Notice of Intent to Defend” (Form A-87) in the way required by these rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.

161. Where the facts stated in the application are deemed to be true and the Board considers that it can make a finding of liability, but cannot determine the question of damages, the Board may decide the liability issue under Rule 160 and leave the damages issue to be determined at an oral hearing.

162. Where the Board decides or has decided a case (or part of a case) under Rule 160, the responding party may not file a Request or a response, or take any other step in connection with the application, other than a reconsideration application, except with the permission of the Board.

10. Accordingly, we shall proceed on the basis that all of the allegations of fact set out in the referral to the Board and in the grievance material have been accepted by the responding party and therefore can be relied on by the Board in making a determination of this matter. The Board therefore finds that:

a) J.P. Rowland Construction Ltd. (“J.P. Rowland”) is bound by the Carpenters’ Provincial Collective Agreement between The Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America, on its own behalf and on behalf of The United Brotherhood of Carpenters and Joiners of America, and its Affiliated Bargaining Agents’ and Responding Party;

b) on April 9, 2001, in Board File No. 3807-00-G between Carpenters District Council of Ontario and J.P. Rowland Construction Ltd., the Board directed that J.P. Rowland Construction Ltd. deliver to the trustees a bond or certified cheque in the amount of $5,000.00 to be held in trust by the trustees;

c) by letter dated April 4, 2001 sent to the solicitors for the applicant from J.P. Rowland, they stated in part as follows:

“…However, what I wish to propose is that beginning May 15, we will remit two months remittance at a time. This should make us current by May 2002”;

d) the applicant accepted J.P. Rowland’s settlement offer and no enforcement proceedings were commenced with respect to Board Decision dated April 9, 2001;

e) to date J.P. Rowland has not complied with the settlement offer stated in its letter dated April 4, 2001. J.P. Rowland has only remitted contributions and deductions for the months of August 2000, December 2000, January 2001 and May 2001 and has failed to remit contributions and deductions for the months of January 2000, February 2000, March 2000, April 2000, May 2000, June 2000, July 2000, September 2000, October 2000, November 2000, February 2001, March 2001, April 2001, July 2001, August 2001 and September 2001 even though it continues to employ members of the applicant as it is evidenced in J.P. Rowland’s letter dated April 4, 2001;

f) the trustees in exercise of reasonable diligence to protect the beneficiaries have deemed J.P. Rowland a repeated delinquent in forwarding or delivering contributions and/or deductions. According to the Employer Contribution History, the average monthly remittance received from J.P. Rowland is approximately $1,787.00. The trustees have determined that a bond in the amount of $10,000.00 is a reasonable amount to protect the beneficiaries of the trust;

g) by grievance letter dated October 30, 2001 sent by the solicitors acting on behalf of the applicant requested that J.P. Rowland post a bond in the amount of $10,000.00;

h) to date the applicant has not received the bond or a certified cheque in the amount of $10,000.00. The applicant therefore requests that an order be granted that J.P. Rowland deliver a bond or certified cheque in the amount of $10,000.00 to be held in trust by the Trustees. J.P. Rowland shall obtain the bond from an insurer licensed under the Insurance Act, R.S.O. 1990, c.I.8 to write surety and fidelity insurance.

11. In view of the Board’s findings in paragraph 10 above, the Board therefore:

(a) declares that J.P. Rowland is bound to the Provincial Collective Agreement between The Carpenters’ Employer Bargaining Agency (E.B.A.) and The Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (C.D.C.) (the “Carpenters’ Provincial Collective Agreement”);

(b) declares that J.P. Rowland violated the Carpenters’ Provincial Collective Agreement;

(c) orders J.P. Rowland to post a bond (from an insurer licensed under the Insurance Act, R.S.O. 1990, c.I.8 to write surety and fidelity insurance), in the amount of $10,000.00 to be held in trust by the Trustees of the applicant;

(d) orders J.P. Rowland to pay to the applicant costs in the amount of $450.00;

(e) orders J.P. Rowland to pay the amount of $214.00 to the applicant pursuant to section 133(13) of the Act.

12. The hearing scheduled for November 27, 2001 is hereby cancelled.

“John Morgan Lewis”

for the Board